I. R. S. v. Hanington

319 Or.App. 805

512 P.3d 817

I. R. S., Petitioner-Respondent,

v.Robert Dale HANINGTON, Respondent-Appellant.

A167834

Court of Appeals of Oregon.

Argued and submitted November 18, 2019.

May 25, 2022

Mark Kramer, Portland, argued the cause for appellant. Also on the briefs was Kramer & Associates.

Caleb D. Mammen argued the cause for respondent. Also on the brief was Oregon Law Center.

Before Tookey, Presiding Judge, and Aoyagi, Judge, and Armstrong, Senior Judge.

ARMSTRONG, S. J.

This case presents an opportunity to address how the Supreme Court's jurisprudence concerning free speech, particularly State v. Rangel , 328 Or. 294, 977 P.2d 379 (1999), bears on the construction and application of ORS 124.005 (1)(e). That provision is one of several that define "abuse" for purposes of obtaining a restraining order under the Elderly Persons and Persons With Disabilities Abuse Prevention Act (EPPDAPA). Respondent appeals a restraining order that prohibited him from "abusing, intimidating, molesting, interfering with, or menacing" petitioner, asserting that the offending conduct was speech that failed to meet the heightened standard of proof required to avoid an overbreadth problem under Rangel . We conclude that EPPDAPA is not constitutionally overbroad in its definition of abuse and does not require the type of saving construction that was at issue in Rangel . Because the trial court applied the correct legal standard under EPPDAPA and the evidence supported the court's findings, we affirm.¹

Petitioner, who is disabled, lives in an apartment directly above respondent's apartment, and the two men have a long history of acrimony. Petitioner is often awake at night and moves about his apartment, causing respondent to hear noise in his apartment below. Respondent, who also is disabled, has medical needs that require him to get a good night's sleep, and he is awakened by and becomes angry over petitioner's night-time noise-producing activities.

On two occasions, respondent became so upset with petitioner that he screamed at him. On September 27, 2017, respondent shouted obscenities at petitioner from outside of petitioner's apartment, yelling, "come on pussy," "come out, you know, and fight me like a man." Respondent told petitioner that he would "fuck [him] up." Petitioner understood respondent to communicate a desire to cause physical harm and feared that he would be harmed if he left his apartment. Petitioner called 9-1-1 dispatch during that incident, and respondent's voice can be heard on a recording of the call, yelling, "I'm right here, fuck you." The dispatch operator confirmed with petitioner that he was safe in his apartment and advised him to lock his door. Petitioner testified that he stayed in his apartment throughout the incident and did not look outside, because he was frightened.

The second incident occurred early in the morning of October 21, 2017. Respondent pounded on the walls of his own apartment and yelled at petitioner above, calling him a "bitch," a "fuck," "motherfucker," and "queer motherfucker." He also yelled, "you know you want me," and "you know you want my dick in your ass." Petitioner testified that that incident triggered his past trauma as a sexual-assault survivor and caused him to fear that respondent would sexually assault him. Petitioner initiated this proceeding, seeking to restrain respondent from further abusive conduct.

Respondent denied some of the conduct and denied that he had an intention to harm petitioner, but he did not dispute that some of the objectionable conduct occurred or that it caused petitioner subjective fear. He testified that he had been drinking heavily on the night of the first incident and that his conduct might have been prompted by intoxication.

ORS 124.010(1)(a) provides that "an elderly person or a person a with a disability who has been the victim of abuse within the preceding 180 days may petition the circuit court for relief * * *, if the person is in immediate and present danger of further abuse from the abuser." The court may issue an order restraining the respondent from "abusing, intimidating, molesting, interfering with or menacing the elderly person or person with a disability, or attempting to abuse, intimidate, molest, interfere with or menace the person." ORS 124.020(1)(c). To establish an entitlement to a restraining order, a petitioner has the burden to prove, by a preponderance of the evidence, (1) that the person is an "elderly person or a person with disability," (2) who was abused by the respondent, (3) that the abuse occurred within 180 days before the initial order, and (4) that the person is in immediate and present danger of further abuse. ORS 124.010(2) ; M.E.D. v. Rohrbach , 257 Or. App. 523, 525, 306 P.3d 789 (2013) (describing burden of proof).

ORS 124.005 describes many types of "abuse" that will support the issuance of a restraining order under the EPPDAPA.² As pertinent here, ORS 124.005(1)(e) defines "abuse" to include:

"Use of derogatory or inappropriate names, phrases or profanity, ridicule, harassment, coercion, threats, cursing, intimidation or inappropriate sexual comments or conduct of such a nature as to threaten significant physical or emotional harm to the elderly person or person with a disability."

(Emphasis added.)

The trial court found that, during the two described instances, respondent had delivered "a tirade laden with profanity and sexual acts" "that could readily invoke emotional harm and/or a fear of safety, emotionally or psychologically." The court concluded that the conduct constituted "abuse" within the meaning of ORS 124.005(1)(e). And, because the court found that it was unlikely that petitioner would change his night-time behavior or that respondent would suppress his frustrations, the court also found that petitioner was in an immediate and present danger of further abuse. The court declined to consider respondent's contention that, to survive a constitutional overbreadth challenge when communicative conduct is involved, ORS 124.005(1)(e) had to be construed to require proof that the communicative conduct gave rise to an objectively reasonable fear of "imminent and serious personal violence," Rangel , 328 Or. at 303, 977 P.2d 379 (citing State v. Moyle , 299 Or. 691, 703-05, 705 P.2d 740 (1985) ), preferring to leave that issue to the appellate courts. Thus, the court concluded that the statutory criteria for a restraining order had been satisfied and entered the order in favor of petitioner.

On appeal, respondent contends that the trial court erred in rejecting his argument that the heightened Rangel standard is applicable and, further, that petitioner failed to meet that burden. Respondent concedes that he engaged in taunting and verbal harassment of petitioner, including threatening sexual acts, but he contends that that conduct is not sufficient to be subject to proscription under the constitutional standard established in Rangel. Alternatively, in the event that we conclude that the Rangel standard is not applicable, respondent contends that the evidence was insufficient to prove that petitioner was in immediate and present danger of further abuse.

Petitioner responds that the trial court did not err, because Rangel has no application in this context. Petitioner reasons that the overbreadth issue with which the court was concerned in Rangel arose in a criminal context and depended on a line of cases following State v. Robertson , 293 Or. 402, 649 P.2d 569 (1982), relating to constitutional free-speech issues in criminal prosecutions. In petitioner's view, those concerns do not extend to the civil restraining order context. Rather, petitioner contends, the proper analysis is found in case law addressing free speech in the context of civil tort claims.

We begin by addressing respondent's contention that ORS 124.005(1)(e) must be construed to incorporate the so-called Rangel standard to avoid constitutional overbreadth. Article I, section 8, of the Oregon Constitution provides:

"No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right."

In Robertson , 293 Or. at 411-13, 649 P.2d 569, the Supreme Court provided a framework for analyzing laws that implicate speech or expression and thereby potentially run afoul of Article I, section 8. Under that framework, when a law focuses on forbidden effects but the proscribed means of causing those effects includes expression, then the law is analyzed for overbreadth—viz ., whether it "announces a prohibition that reaches conduct which may not be prohibited." Id. at 410, 649 P.2d 569 ; see also State v. Garcias , 296 Or. 688, 699 n. 10, 679 P.2d 1354 (1984) (holding that Robertson had refined the overbreadth analysis by "recogniz[ing] that a statute which reaches constitutionally protected behavior only rarely when compared with legitimate applications of the law need not succumb to an overbreadth attack. Such a statute may be interpreted as impliedly excluding the protected activity from coverage."). If the statute is overbroad—that is, it reaches protected expression more than only rarely, the court must consider whether a "saving construction is necessary, and if so, whether it is possible." Robertson , 293 Or. at 413, 649 P.2d 569 ; see Garcias , 296 Or. at 699 n. 10, 679 P.2d 1354.

In Rangel , the court applied that framework to the criminal stalking statute, ORS 163.732(1). That statute makes it a crime when a person "knowingly alarms or coerces another person or a member of that person's immediate family or household by engaging in repeated and unwanted contact with the other person." ORS 163.732(1). The court in Rangel began its analysis by noting that the statute was directed at a forbidden effect—repeated and unwanted contacts—but that expression was one means by which that forbidden effect could be...